Posted June 13, 2008 by J. Gerald Hebert

Federal Court to FEC: "Strike III, You're Out!"

Yet again a federal court has foundthe FEC’s implementation of the Bipartisan Campaign Reform Act (BCRA) to be unreasonable and to undermine the purposes of the law.  Today’s unanimous ruling from the U.S. Court of Appeals for the D.C. Circuit in Shays v. FEC (Shays III) criticizes FEC’s grossly strained interpretation of a number of BCRA provisions.  As we have maintained from the outset, the court found that the Commission simply chose to ignore both the word and the spirit of significant portions of the law when it implemented BCRA. 

The court struck down the FEC’s “coordination” rule on the grounds that it  “would lead to the exact perception and possibility of corruption Congress sought to stamp out in BCRA,” “frustrate Congress’ goal of prohibiting soft money . . . in federal elections,” and “unduly compromise[]” BCRA’s purposes.  The court characterized the FEC’s explanation of its “coordination” rule as “absurd” and concluded that the FEC’s explanation “flies in the face of common sense.”

The court also struck down the FEC’s rules regulating “federal election activity,” declaring that they “run directly counter to BCRA’s purpose” and “create two distinct loopholes.”

Finally, the court struck down an FEC rule that, despite the BCRA provision explicitly prohibiting federal candidates from soliciting soft money, permits such individuals to speak and solicit soft money at state party fundraisers “without restriction or regulation.”  The court found that the FEC rule “allows what BCRA directly prohibits” and that the relevant BCRA provision “cannot plausibly be read to allow federal candidates to solicit soft money at state party events.”

Today’s decision is just one in a very long list of reasons why the FEC must be overhauled.  There is no justification for an enforcement agency that must be repeatedly sued by the very Members of Congress whose laws it is supposed to enforce.  Despite the often partisan backgrounds of many of the commissioners, they should still not be deciding which laws they will or will not implement and enforce properly.

The Campaign Legal Center serves as counsel to U.S. Senator Russell Feingold, who participated in the case as amicus curiae.

To read the court’s decision, click here.